Professor David L. Shapiro

VOLUME 133 JUNE 2020 NUMBER 8 © 2020 by The Harvard Law Review Association IN MEMORIAM: PROFESSOR DAVID L. SHAPIRO The editors of the Harvard Law Review respectfully offer this collec- tion of tributes to Professor David L. Shapiro. Justice Ruth Bader Ginsburg∗ Among members of the legal academy, David L. Shapiro impressed me as the very best, the most devoted to his teaching and writing, the least self-regarding. Attesting to the intellectual rigor, yet suppleness of his mind: the Fay Diploma and summa degree he received from Harvard Law School; his talent as a teacher; his hand, 1973–2019, at the helm of the second through seventh editions of Hart & Wechsler’s The Federal Courts and the Federal System, with supplements in between;1 other books he wrote with characteristic elegance and accessibility; and reams of articles. He resisted typecasting as a formalist or a consequentialist.2 He was ever mindful of the importance of facts and of the law’s impact on the people law exists (or should exist) to serve. My personal experience with David’s wit and wisdom began when he and my revered Civil Procedure teacher, Benjamin Kaplan, launched, early in the 1970s, the American Law Institute’s Restatement (Second) of Judgments. As a member of the Advisory Council to that Restatement, I attended periodic meetings to review drafts. It was a treat to observe the Reporters’ presentations, their good humor, pa- tience, and readiness to listen carefully to views that did not coincide ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Associate Justice, Supreme Court of the United States. 1 Harvard Law School Dean John F. Manning, a coauthor of the sixth and seventh editions, called Professor Shapiro “the heart and soul of ‘The Federal Courts & the Federal System.’” Christine Perkins, David L. Shapiro 1932–2019: The “Heart and Soul” of Federal Courts and the Federal System, HARVARD LAW TODAY (Nov. 26, 2019), https://today.law.harvard.edu/david-l- shapiro-1932-2019-the-heart-and-soul-of-federal-courts-and-the-federal-system [https://perma.cc/ QRU5-FCNP]. 2 See Letter from David L. Shapiro, Professor of Law, Harvard Law Sch., to author (Mar. 20, 2007) (on file with the Harvard Law School Library). 2443 2444 HARVARD LAW REVIEW [Vol. 133:2443 with their own. I was hugely appreciative when Professor Kaplan and David asked me to join them as Reporter for the Restatement’s Fifth Chapter on Relief from a Judgment. Hard as it was to miss the opportunity, my days and nights in the 1970s were occupied heading the American Civil Liberties Union’s Women’s Rights Project, advancing its mission to rid state and federal statutes of explicit gender-based differentials.3 David took a three-year leave of absence from his law school post, 1988–1991, to serve as Deputy Solicitor General, principal aide to his Harvard teaching colleague, then–Solicitor General Charles Fried. Fried’s choice caused an uproar among some in the administration,4 for in 1976, David had written an article published in the Harvard Law Review titled: Mr. Justice Rehnquist: A Preliminary View.5 In it, David recognized the Justice’s “considerable intellectual power and indepen- dence of mind,” but said his performance was marred by “the unyielding character of his ideology.”6 Would Shapiro fare well before the Court having so criticized the Chief Justice, was the question opponents of Fried’s choice raised.7 Yes was the answer, David’s time in office made plain. He participated in composing more than forty briefs and deliv- ered ten oral arguments.8 David’s briefs were always lucid and trust- worthy; his oral arguments, engaging and nimble. The article, after all, was only a first view and uncharacteristically, it contained a mistake, which I called to David’s attention. David wrote that in Justice Rehnquist’s first four and a half years, “he has never voted to strike down government action subject to scrutiny under the rational basis test.”9 I asked David if he had missed Weinberger v. Wiesenfeld,10 a case decided in 1975. At issue in that case: Was a widower denied equal protection when he was turned down for Social Security benefits upon his wage-earning wife’s death in childbirth, leav- ing him the infant’s sole parent?11 Had a wage-earning male parent ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 3 As it turned out, Professor Kaplan had to resign in 1973 after he was appointed to the Supreme Judicial Court of Massachusetts. David withdrew the next year when he suffered a rare and debilitating illness that left him able to speak only in a raspy whisper. He coped bravely with the ailment, ever after using a microphone to speak in class and elsewhere. 4 See Ruth Marcus & Al Kamen, Solicitor General Rocks the Conservative Boat, WASH. POST, June 10, 1988, at A21. 5 90 HARV. L. REV. 293 (1976). 6 Id. at 293. 7 See Bryan Marquard, David L. Shapiro, Harvard Law Professor and Former Deputy Solicitor General, Dies at 87, BOS. GLOBE (Dec. 1, 2019, 6:06 PM), https://www.bostonglobe.com/metro/ obituaries/2019/12/01/david-shapiro-harvard-law-professor-and-former-deputy-solicitor-general- dies/RfHXQqY2hfelarjWJFthmJ/story.html [https://perma.cc/76JM-S4GG]. 8 See Perkins, supra note 1. 9 Shapiro, supra note 5, at 308. 10 420 U.S. 636 (1975). 11 Id. at 639–42. 2020] DAVID L. SHAPIRO 2445 died, there would have been benefits for the widow.12 The Court’s ma- jority viewed the classification as discriminating impermissibly against women as wage earners, because the law provided their families less protection than it provided the families of male wage earners.13 As counsel for the widower, I also argued that the law discriminated against men as parents, because it did not afford them the same opportunity as women to care personally for their children.14 Justice Rehnquist resisted both arguments, but was satisfied that the baby had been treated arbi- trarily. He wrote: “[I]t is irrational to distinguish between mothers and fathers when the sole question is whether a child of a deceased [Social Security] contributing worker should have the opportunity to receive the full-time attention of the only parent remaining to it.”15 David was aware of the Wiesenfeld case. He told me he had an index card on Justice Rehnquist’s atypical opinion. But those were pre– personal computer days. When it came time to report the results of his research, he simply skipped over the card. David’s preliminary view was just that. I think he would have revised his first look after the Chief Justice wrote the opinion saving Miranda16 and the equally remarkable opinion upholding the authority of Congress to enact the Family and Medical Leave Act.17 David took emeritus status in 2006 and wrote that he relished the “luxury” of “not having to adhere to a schedule.”18 His days remained full. He stepped up his activity as a consultant in complex appellate cases, worked out regularly, kept up with Hart & Wechsler, and “read[] everything from Dostoevsky to Scott Turow.”19 For sixty-five years David was married to Jane Bennett, an art dealer, whose “energy and zest for life. [kept him] going,” in his later years in particular, through a hip replacement in 2012, a new heart valve the next year,20 and no doubt, the death of their only child from cancer in 2011.21 I will think of him when a sticky question of statutory construction arises and recall his sound advice: “[C]lose questions of [statutory] construction should be resolved in favor of continuity and against ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 12 Id. at 640–41. 13 Id. at 645. 14 Brief for Appellee at 11–12, Wiesenfeld, 420 U.S. 636 (No. 73–1892). 15 Wiesenfeld, 420 U.S. at 655 (Rehnquist, J., concurring in the result). 16 See Dickerson v. United States, 530 U.S. 428 (2000). 17 See Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003). 18 Letter from David L. Shapiro, Professor of Law, Harvard Law Sch., to author (Aug. 14, 2006) (on file with the Harvard Law School Library). 19 Letter from David L. Shapiro, Professor of Law, Harvard Law Sch., to author (Sept. 16, 2014) (on file with the Harvard Law School Library). 20 Id. 21 See Marquard, supra note 7. An adored granddaughter continued to brighten his life. 2446 HARVARD LAW REVIEW [Vol. 133:2443 change.”22 And I will miss our correspondence about the Court’s juris- prudence, his applause for some of our decisions,23 his worries about others.24 But I count it my good fortune to have known David L. Shapiro, a man as kind and caring as he was brilliant. John F. Manning∗ The William Nelson Cromwell Professor Emeritus, David L. Shapiro, taught at Harvard Law School for forty-three years, with only a brief hiatus to serve his country as Deputy Solicitor General. David loomed large here — and throughout the entire legal community. He was a great and innovative teacher, not to mention an engaged and generous institution builder. David was also a wise and important scholar, who did more than perhaps any other person in the past half century to cultivate and keep alive the central premise of Harvard’s Legal Process tradition: the idea that law is — and, if it is to be legitimate, must be — the product of reason, not will.25 David, whom I knew well as a colleague, coauthor, and friend, was also a wonderful person — kind, generous, humble, and full of mischief, always ready to tell a joke or laugh at one.

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